Eric Lindgren, Washington University of St. Louis, School of Law, 3L @ejlindgren

On Thursday, 8 September 2011, several dozen activists gathered inside the Powell BART Station lobby in San Francisco to protest the fatal BART police shootings of Oscar Grant III and Charles Hill. The protesters, led by Krystof Cantor of No Justice No BART, slowly marched around the main lobby of the station, chanting “No justice, no peace, disband the BART police!” and “How can they protect and serve us? BART police just make me nervous!” After only about 20 minutes, BART police got fed up. They encircled and arrested between 26 and 30 people, and shut down the station for two hours. Today, 12 September 2011, more protestors will assemble for what has been dubbed #OpBART5. Next Monday, #OpBART6 will ensue.

During these peaceful protests, BART has repeatedly attempted to short-circuit protest directed at it, defending its anti-speech actions by invoking a need to protect public safety. Spokesperson Linton Johnson relied on a non-existent “constitutional right to safety” to justify BART’s pre-emptive shutdown of cell phone service on August 11, vaguely alluding to Brandenburg v. Ohio 395 U.S. 444 (1969), albeit in error. Moreover, Deputy Chief of BART police Dan Hartwig claimed that rider safety required the September 8 mass arrests under California Penal Code section 369i, which states:

“Any person who enters or remains upon any rail transit related property owned or operated by a county transportation commission or transportation authority without permission or whose entry, presence, or conduct upon the property interferes with, interrupts, or hinders the safe and efficient operation of the railline or rail-related facility is guilty of a misdemeanor.”

“The actions that were taken [by the protesters] created a situation that was unsafe because clear passage to the fare gates was not allowed,” Hartwig said. “Police had to intervene and create safe passage.”

Perhaps Hartwig should have read on in the statute, as 369i, as subdivision (c) informs us that labor disputes are explicitly protected.

(c) This section does not prohibit picketing in the immediately adjacent area of the property of any railroad or rail transit related property or any lawful activity by which the public is informed of the existence of an alleged labor dispute.

Of course, one content of speech cannot be given preference over another, so that if a labor dispute can lawfully be picketed under the statute, certainly a protest involving railroad related activities, such as the brutality of BART police, is covered both by the First Amendment and the penumbra of speech in 369i(c). As of this writing, BART police can no longer claim good faith reliance upon an unconstitutional statute.

Using public safety as an excuse to shut down peaceful protest of one type but not another, of course, raises important questions about the boundaries of free speech. Moreover, there is a distinction between the police need to move protestors and the need to arrest them that has seeming evaporated. ABRT has taken a decidedly heavy-handed “arrest first, ask questions later” approach to these peaceful protests. True, some passengers may get inconvenienced. However, They were in no way inconvenienced to the extent that Charles Hill or Oscar Grant III were. . . and therein lies the point. Our Supreme Court makes clear this point: “Had petitioners in any way interfered with the conduct of the railroad business, they could legitimately have been asked to leave.” In re Hoffman, 67 Cal. 2d 845, 852 (1967).

Indeed, the California Supreme Court confronted all of these questions in the context of anti-war leafleting in the case of case of In re Hoffman, 67 Cal. 2d 845 (1967). On 5 September 1966, about 15 protesters entered the then privately-owned Union Station in Los Angeles to distribute leaflets opposing the Vietnam War. Although they stayed in the main entrance and lobby, several of the protesters were arrested and convicted under a municipal ordinance prohibiting anyone from remaining in a rail station “for a period of time longer than reasonably necessary” to conduct business with a carrier.

Addressing a constitutional challenge to the ordinance, the Hoffman Court explained that the First Amendment allows for “reasonable time, place and manner restrictions.” Narrowly tailored laws may prevent people from congesting “areas where their presence would threaten personal danger or block the flow of passenger or carrier traffic,” such as loading areas, doorways, ticket windows and turnstiles. Hoffman, 67 Cal. 2d at 853. But the ordinance at issue “completely prohibit[ed] protected activities although a narrower measure would fully achieve the intended ends and at the same time preserve an effective place for the dissemination of ideas.” Id. Consequently, the Court struck down that section of the ordinance and overturned the convictions.

“In a series of cases following [a 1939 decision] the Supreme Court determined that a regulation of First Amendment activities in streets and parks must be supported by a valid municipal interest that cannot be protected by different or more narrow means. Such activities can be regulated only to the extent necessary to prevent interference with the municipality's interest in protecting the public health, safety, or order or in assuring the efficient and orderly use of streets and parks for their primary purposes. . . If the state curtails First Amendment freedoms to protect an interest that is nonexistent, whether claimed on behalf of the government or on behalf of a private individual, it violates the First and Fourteenth Amendments. [¶] The primary uses of municipal property can be amply protected by ordinances that prohibit activities that interfere with those uses. Similarly, the primary uses of railway stations can be amply protected by ordinances prohibiting activities that interfere with those uses. In neither case can First Amendment activities be prohibited solely because the property involved is not maintained primarily as a forum for such activities.” Hoffman, 67 Cal. 2d at 849-850

Section 369i is similarly vague and broad. It makes no attempt to specify what First Amendment activities might hinder the “safe and efficient operation of the railline,” leaving far too much discretion to officers on the scene. This concern is especially acute when the target of protest is law enforcement itself. The metaphor of the fox guarding the henhouse is apt for this situation.

But even if section 369i on its face can withstand constitutional scrutiny - - and subdivision (c) makes that incredible unlikely - - its application to the recurrent protesters cannot. BART has completely failed to identify any way in which the protest put anything but its own public image in danger. Video shows that the protesters, while loud, were entirely peaceful. They complied with BART’s request that they confine the protest to the unpaid lobby area, far from the loading areas. They blocked no doorways or ticket windows. And an imposing phalanx of riot-geared, baton-wielding officers—whose numbers rivaled or eclipsed the protesters’—prevented them from getting near the turnstiles.

Deputy Chief Hartwig also admitted that the majority of protesters left the area simply upon being asked. Finally, shortly before the arrests, BART closed Powell Station to everyone, betraying its assertions that the arrests were purely to secure “clear passage to the fare gates.” On a second look, BART’s “public safety” justification is pure fiction.

Nor can BART claim a private interest in restricting speech on its property. Not only is BART a public entity, but in California even private parties which open their facilities to the general public may not abridge the free speech rights of people on their property. Indeed, “the public interest in peaceful speech outweighs the desire of property owners for control over their property.” Robins v. Pruneyard Shopping Ctr., 23 Cal. 3d 899, 909 (Cal. 1979), aff’d 477 U.S. 74 (1980). This is so because California's constitution contains an affirmative right of free speech which has been liberally construed by the Supreme Court of California. Pruneyard, 477 U.S. 74 (1980). The California Constitution states in Article 1, § 2 “ Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press. ” and Article 1, § 3 states that the “ [P]eople have the right to . . . petition government for redress of grievances.” At least, they did until the BART police got involved. Now they apparently have the right to go to jail if they do what the constitution, statutes and courts plainly allow.

In sum, BART had no legal justification for the mass arrests of September 8. Section 369i arguably violates the First Amendment on its face, and certainly infringes the protesters’ rights as it was harshly applied to them. As Hoffman Court said, “If the state curtails First Amendment freedoms to protect an interest that is nonexistent, . . . it violates the First and Fourteenth Amendments.” 67 Cal. 2d at 850. BART’s alleged interest in “public safety” in this case is contrived and does not authorize its infringement of the protesters’ free speech rights. BART is doing what police in oppressive regimes throughout time immemorial have done, they are using the local constabulary to chill the speech of the populous that it has a disagreement with. This injustice cannot stand. As Thomas Paine said “Tyranny, like hell, is not easily conquered.” Conquer this tyranny we will, and BART commuters will thereby be enriched.